Sociology_of_international_human_rights_law
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Sociology_of_international_human_rights_law
The foundations of international human rights law: A sociological inquiryChris ThornhillInternational human rights law and the crises of the nation st Sociology_of_international_human_rights_lawtate In most parts of the world, the classical design of the national state has recently been supplanted by a system of political organization, in which the authority and competences of national institutions are restricted by international legal norms, usually applied by judicial bodies.1 Indeed, th Sociology_of_international_human_rights_lawe general development of national statehood since 1945 is marked, albeit in regionally variable fashion, by one primary trajectory, which increasinglySociology_of_international_human_rights_law
makes it inaccurate to talk of statehood as a specifically national phenomenon. On one hand, externally, statehood is shaped by the increasing impactThe foundations of international human rights law: A sociological inquiryChris ThornhillInternational human rights law and the crises of the nation st Sociology_of_international_human_rights_lawthe International Labour Organization (ILO)), on procedures for legislation in national polities. As a result of this, national legislation is now almost always, to some degree, co-determined by internationally justiciable norms. On the other hand, internally, statehood is shaped by the directly lin Sociology_of_international_human_rights_lawked rise of national courts, which, typically acting in close comity with supra- or international judiciaries, conduct judicial review of national lawSociology_of_international_human_rights_law
making, and impose normative constraints on acts of democratically mandated legislators.2 As a result of this, similarly, national laws are pre-definThe foundations of international human rights law: A sociological inquiryChris ThornhillInternational human rights law and the crises of the nation st Sociology_of_international_human_rights_lawugh which judicially imposed norms, usually of international provenance, have assumed dramatically increased importance in national legislation. The consequence of this is that1Early versions of this article were presented at conferences at the Humboldt University in Berlin (2013), the University of Sociology_of_international_human_rights_law Modena (2013), theUniversidade Federal do Rio de Janeiro (2013), and Pazmany Peter Catholic University, Budapest (2013). A subsequent version was preSociology_of_international_human_rights_law
sented at the Tribunal Regional Federal da 4à Região (TRF4) In Porto Alegre, Brazil (2014). My gratitude is due to all participants in debates at thesThe foundations of international human rights law: A sociological inquiryChris ThornhillInternational human rights law and the crises of the nation st Sociology_of_international_human_rights_lawnded by the European Research Council (Advanced Grant 323656 - STC). Some ideas first expounded in this article have now appeared In different form in my book: A Sociology of Transnational Constitutions: Social Foundations of the Post-National Legal Structure (Cambridge: Cambridge University Press, Sociology_of_international_human_rights_law2016). This book is available in Open Access at the following link:https://www.research.manchester.ac.uk/portal/files/40835174/SOCIOLOGY OF TRANSNATISociology_of_international_human_rights_law
ONAl CONSTITUTIONS.pdf.2Note, therefore, the use of the term ‘judicial review revolution' to describe recent changes in democratic design in Thierry sThe foundations of international human rights law: A sociological inquiryChris ThornhillInternational human rights law and the crises of the nation st Sociology_of_international_human_rights_lawternationale de droit compare 46(3) (1994): 891-899; 892. II Is often observed that pure parliamentary sovereignty has ‘faded away' across the globe. See Tom Ginsburg, 'Introduction: The Decline and Fall of Parliamentary Sovereignty' in Tom Ginsburg (ed), Judicial Review in New Democracies: Constitu Sociology_of_international_human_rights_lawtional Courts In Asian Cases (Cambridge: Cambridge University Press, 2003), pp. 1-20; 3.1transnational judicial democracy has now become a prevalent,Sociology_of_international_human_rights_law
even the dominant, model of national statehood. This model first became prominent in the post-authoritarian polities that were established, experimentThe foundations of international human rights law: A sociological inquiryChris ThornhillInternational human rights law and the crises of the nation st Sociology_of_international_human_rights_lawsingly universal, and it is able even to shape the form of polities in which the immediate reception of international law has traditionally been obstructed. For instance, it penetrates polities (e.g. the UK), which are constitutionally resistant to higher-order legal norms;3 4 it penetrates polities Sociology_of_international_human_rights_law (e.g. China)/ which have not yet evolved fully enforceable democratic constitutions, and which historically rejected international law as Western impSociology_of_international_human_rights_law
erialist artifice; it penetrates polities, for example in Southern Africa, whose basic domestic legal order remains uncertain, pluralistic, often infoThe foundations of international human rights law: A sociological inquiryChris ThornhillInternational human rights law and the crises of the nation st Sociology_of_international_human_rights_law international norms.6At the centre of this emerging pattern of statehood is the growing force of international human rights law, including the law created and enforced in special human rights system, such as bodies applying the European Convention on Human Rights (ECHR) and the American Convention Sociology_of_international_human_rights_lawon Human Rights (ACHR).7 Human rights law is now normally taken as the primary basis for review of legislation, and, in different ways in different seSociology_of_international_human_rights_law
ttings, it forms the criterion of legitimacy for new laws - both in and beyond national jurisdictions. In international society, human rights law placThe foundations of international human rights law: A sociological inquiryChris ThornhillInternational human rights law and the crises of the nation st Sociology_of_international_human_rights_lawarameters of legitimate national legislation and executive actions. Within many national polities, individual persons can obstruct legislation by appealing to international courts, single acts of legislation are routinely subject to judicial review for conformity with international human rights norm Sociology_of_international_human_rights_laws, and most constitutions expressly authorize national courts to3Since the Factortame cases, the UK national parliament Is clearly, in part, subordinaSociology_of_international_human_rights_law
te to European law. See Anthony Bradley, 'The Sovereignty of Parliament - Form or Substance?’ In Jeffrey Jowell and Dawn Oliver (eds). The Changing CoThe foundations of international human rights law: A sociological inquiryChris ThornhillInternational human rights law and the crises of the nation st Sociology_of_international_human_rights_lawn rights law has been Integrated as part of a 'constitutional statute’. See Roger Masterman, ’Taking the Strasbourg Jurisprudence into Account: Developing a 'Municipal Law of Human Rights' under the Human Rights Act.' International and Comparative Law Quarterly 54(4) (2005): 907-931; 913.4Guobln Zhu Sociology_of_international_human_rights_law, ’Constitutional Review in China: An Unaccomplished Project or a Mirage?’ Suffolk University Law Review 63 (2010): 101-129; 109.5Kwasi Prempeh, 'MarbSociology_of_international_human_rights_law
ury In Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa.’ Tulane Law Review 80 (2006): 1239-1323; 1241, 1242. GenThe foundations of international human rights law: A sociological inquiryChris ThornhillInternational human rights law and the crises of the nation st Sociology_of_international_human_rights_lawMona El-Ghobashy, ’Constitutionalist Contention In Contemporary Egypt.’ American Behavioral Scientist 51 (2008): 1590-1610; 1613.■ Notably, to support this inclusion, the Inter-American Court of Human Rights (ACtHR) perceives itself as appointed to interpret and even to construct an International co Sociology_of_international_human_rights_lawrpus Juris. See Inter-American Court of Human Rights, Comunldad Indigene Yakye Axa V Paraguay (2005).2enforce international norms regarding rights.3 *Sociology_of_international_human_rights_law
* * * 8 * Even where this is not seen as a formal imperative, national judges show extensive regard for the rights jurisprudence of foreign courts anThe foundations of international human rights law: A sociological inquiryChris ThornhillInternational human rights law and the crises of the nation st Sociology_of_international_human_rights_lawashion.- Overall, rights form a vocabulary of legitimacy that locks together the national and international dimensions of an emerging global political system, and laws are increasingly authorized above, through and across the divisions between national polities (i.e. transnationally) by the extent t Sociology_of_international_human_rights_lawo which, at different levels, they derive legitimacy from judicial bodies, which screen the content of laws through reference to international rightsSociology_of_international_human_rights_law
norms.It is commonly asserted that this new model of statehood is conditioned by forces located outside national societies, and the increasingly denseThe foundations of international human rights law: A sociological inquiryChris ThornhillInternational human rights law and the crises of the nation st Sociology_of_international_human_rights_lawrise of international human rights norms is commonly described as a symptom of legal globalization, and it is observed as a process which originates outside national societies, in relative indifference to the authority of national states, and which compels national institutions to act within externa Sociology_of_international_human_rights_lawlly ordained normative limits, so diminishing the effective power of sovereign states.10 Legal globalization, in fact, is almost always associated witSociology_of_international_human_rights_law
h a relativization of state authority, in which the rise of a global legal arena places both formal and informal restrictions on powers classically exGọi ngay
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